The general equality duty – don’t forget it.

The announcement yesterday that a group of disabled people are challenging the Government’s decision to close the Independent Living Fund has prompted this blog to remind institutions of the oft-forgotten general equality duty which forms the basis of the legal challenge.

Briefly, the general duty requires institutions to eliminate discrimination, advance equality of opportunity and foster good relations between persons who share a protected characteristic and those who do not (e.g. between disabled and non-disabled persons).

Increasingly, students are adding an allegation of breach of the general duty to individual discrimination claims. They are entitled to do so, because contrary to connotations of the adjective “general”, the duty also applies to policy decisions in individual cases. Of particular significance is the limb of the duty requiring due regard to the need to advance equality of opportunity. An instructive illustration of this is the case of the Sikh school girl who successfully challenged her school’s application to her of its uniform policy (R (Watkins-Singh) v Aberdare Girls’ High School [2008] EWHC 1865 Admin). The court concluded that in excluding her from school because she wore the Kara (bangle) in breach of the uniform policy, it failed to appreciate the exceptional significance to devout Sikhs of the need to wear the Kara and hence failed to comply with the duty to promote equality of opportunity.

The duty to promote equality of opportunity includes the duties to have due regard to the need to remove/minimise disadvantages suffered by disabled people and to have due regard to the need to take steps to meet the needs of disabled people. These are of particular significance in the context of disability claims and arguably, the requirements amount to an extension of the duty to make reasonable adjustments, but with a lower threshold of engagement. The duty to make reasonable adjustments is engaged when, without the particular adjustment, the student would suffer substantial disadvantage which is connected with his/her disability. On the other hand, the general equality duty arises in respect of meeting needs and removing disadvantages, and in some cases could require action by an institution where the duty to make reasonable adjustments may not be engaged.

Institutions faced with requests from disabled applicants and students should not therefore confine their analyses of their duties to the strict anti-discrimination provisions of the Equality Act, in particular the duty to make reasonable adjustments.  A broader approach may be required, such as assessing the impact of a particular decision or policy stance on disabled persons (or persons with other protected characteristics). It is important to emphasise however that discharging the general equality duty does not require institutions to provide separate services to different groups or individuals with a protected characteristic.  The general equality duty relates to an institution’s functions (i.e. providing education, training and related services) and does not require for example the provision of personal or health care services to students with a particular disability.

The general duty is enforced by means of judicial review proceedings.  A successful challenge would quash the institution’s original decision and require the decision to be taken again, but with due regard to the general duty.  A student could not claim compensation for loss or injury to feelings unless there was also a breach of the discrimination provisions of the Equality Act.

Geraldine Swanton
Senior Associate Solicitor
Education Team
For and on behalf of SGH Martineau LLP
DD: 0800 763 1455
F: 0800 763 1001
International DD: +44 870 763 1385
E: geraldine.swanton@sghmartineau.com
W: www.sghmartineau.com

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